News Bush Administration Makes An End Run Around Congress

The long promised tort reform is being slipped in quietly and not in a manner anyone had imagined.

Faced with an unfriendly Congress, the Bush administration has found another, quieter way to make it more difficult for consumers to sue businesses over faulty products. It's rewriting the bureaucratic rulebook.

Lawsuit limits have been included in 51 rules proposed or adopted since 2005 by agency bureaucrats governing just about everything Americans use: drugs, cars, railroads, medical devices and food.

It beats me exactly how this is supposed to work.

Rooted in the Supremacy Clause of the Constitution, federal preemption refers to circumstances in which federal law and regulation trump state law, in this instance state laws that govern when one person may be held liable for another's injury.

In some instances, judges seem as exercised as consumer advocates about the FDA's undermining of lawsuits under state tort law.

In a recent decision, a federal appeals court judge wrote that the FDA has for over three-quarters of a century viewed state tort law as complementary to the agency's safety warnings on prescription drug packages and ''only for the last two years has it claimed otherwise.''

Staff: Mentor

I must admit I'm not real clear on the exact issue there, but I was recently thinking about why I dislike the legal profession so much and it's kinda related: It struck me that the law/legal profession is based on the presumption of dishonesty and stupidity. Frivoless product lawsuits are the perfect example of this. How is it reasonable for a company to have to put a warning label on a product or pay up in a lawsuit based on the presumption that they should anticipate any idiotic thing a customer may do? Why is it reasonable for contracts to be 50 pages long because they must close every potential loophole rather than consider those loopholes closed by good faith?

I didn't realize where Dennis Quaid was going with his lawsuit, but the angle his lawers are taking is rediculous. Medical professionals are professionals and that comes with a certain amount of responsibility. Having similar packaging does not absolve the doctors/nurses who administered the drugs from that responsibility and should not open up the drug company to a lawsuit. And we wonder why our medical costs are so high?

The bottles have been recalled because they were too similar. Pharmacy technicians put the wrong bottles on the shelves before nurses mistakenly used it. The ironic thing is the FDA also approves labeling. The bottles were not side by side as in the picture.

Staff: Mentor

Frivoless product lawsuits certainly are a problem which does drive up cost. But if someone acts in a reckless or negligent manner, which results in injury to another party, how does the injured party recover? How does society penalize those who chose to act in a negligent manner, e.g. cutting corners for profit or administering improper medication or performing an incorrect surgery or . . . . ? What cap would be reasonable on attorneys' fees or awards?

I also disapprove of class action suits and the way they are handled, especially when lawyers get huge fees and the majority of alleged victims get pocket change or coupons.

The bottles have been recalled because they were too similar. Pharmacy technicians put the wrong bottles on the shelves before nurses mistakenly used it. The ironic thing is the FDA also approves labeling. The bottles were not side by side as in the picture.

Back to the topic. Where is this going? Even Judges are taking issue with it.

State tort law was not an issue until 2 years ago.

Have you heard of the Class Action Fairness Act of 2005? In that law federal jurisdiction was declared in suits brought against out of state parties. This was done to counteract the effect of forum shopping to obtain favorable findings against large companies.

Frivoless product lawsuits certainly are a problem which does drive up cost. But if someone acts in a reckless or negligent manner, which results in injury to another party, how does the injured party recover? How does society penalize those who chose to act in a negligent manner, e.g. cutting corners for profit or administering improper medication or performing an incorrect surgery or . . . . ? What cap would be reasonable on attorneys' fees or awards?

I also disapprove of class action suits and the way they are handled, especially when lawyers get huge fees and the majority of alleged victims get pocket change or coupons.

yeah, but how else can ONE individual (maybe with little, or no, resources) go up against a corporate giant ?

One of my concerns with the new method of handling tort law is that manufacturers will not have an incentive to correct possibly fatal flaws in products.

A good example of this is with roll over incidents especially with trucks and SUVs. The roof of the vehicles crush like an aluminum can.

With the auto industry and the NHTSA holding hands, under the new and improved system there will be no chance for family to sue when the vehicle roof crushes a persons head.

The family of a local border patrol agent is trying to deal with a situation like this currently.
The roof of the Chevy Tahoe the agent was driving caved in horribly in what should have been a survivable accident. The accident was caused by a tire tread separation btw.

Here is an example you might not know about. http://www.perryhaas.com/durrill_vs_ford_overview.html After reading this write up you might think that the case was an excellent example of the proper application of Tort case law. Two young girls are horribly burned and die of their injuries. Ford Motor Company testifies that it has done a cost-benefit analysis for upgrading the safety of the fuel tank and the numbers say that it would cost more to fix than potential lawsuit costs. That analysis did it for Ford. The punitive damages were truly immense and the case was appealed and eventually scheduled to be presented before the Texas Supreme Court. Before the Supreme Court could hear the case, Ford settled out of court with the Durrill's for an undisclosed amount.

What you don't know about this case is that the car was parked on the side of the road at dusk with a flat tire and a drunk ran into it at full highway speed. It caught fire and burned as a result of that terrific impact.

On the other hand Ford had a big problem with that vehicle platform even in lower speed rear end collisions.

The collision occurred in October, 1978, a few months following the famous Pinto recall. The Mustang II was built from the same vehicle platform as the Pinto and contained the same defects - the fuel tank was mounted rear of the axle;

Ford currently is settling cases involving the Crown Victoria and the fuel tank. A local police officer was burned to death when he was struck in the rear by a Honda Accord. The officer might have been saved but the doors also jammed and couldn't be opened in time. edit: BTW the driver of the Honda survived.

Staff: Mentor

I don't think I would propose a cap on the awards. The restrictions I would like to see are with regard to personal responsibility only. Today it is possible for a person to do something stupid and then sue someone else for not forseeing that and protecting them against it.

One easy way to decrease the number of frivoless lawsuits is to automatically charge the court costs/legal fees to the loser of the case.

Staff: Mentor

Will the auto manufacturers have any incentive to build safer cars knowing that they will not be held responsible.

How about the manufacturers of products such as defective baby cribs?

Should they be given a free ride from responsibility??

The answer is simply that the government needs to set the safety standards. The government needs to decide, what reasonable collision speed a fuel tank needs to be designed to survive. And that, btw, is what the article in the OP says is being done.

I've thought that for years! I think that's how it's done in the UK (if it isn't, a helpful PF-Brit will straighten me out!).

The problem is that it helps large corportations. Sue us and we will engage 100 QCs at £10,000 a day and if we win you pay them, if we lose we only have to pay for your cheap £50/hour laywer. It becomes a game of poker where the one with the deepest pockets can just wrack up the possible bill until the poor guy blinks.

It happened recently in the UK when a couple campaigning against McDs lost a libel case.

The real limit in the UK is that the judge not the jury sets the payout for damages and have to be based on measurable things like future loss of earnings. This tends to lead to unpopularly large payouts to actors/actresses and Wall St types.

There isn't a straight solution. On the one hand you have the idiot who tried to gulp his coffee down in one second, burning his mouth and throat, suing McD's for making his coffee hot. Among other successful but stupid lawsuits.

And then there are the legitimate suits against corporations that compromise product safety against profit and loss liability. Literally putting a dollar value to a human life against the profit gained by not including a safety feature.

And then there are the legitimate suits against corporations that compromise product safety against profit and loss liability. Literally putting a dollar value to a human life against the profit gained by not including a safety feature.

I would disagree with this. Provided the corporation has not been deceitful about what safety features are on a vehicle/product, it is up to the consumer to make the choice. If a person knowingly buys a product lacking a particular safety feature, then receives an injury that could have been prevented by such a feature, it's their own darn fault.

Should vehicles have breathalyzers in them, and not start until after the driver blows? The technology is available. Maybe the vehicle should not be able to run unless everyone inside wears a seat belt? As long as the company hasn't lied about the features, and their product meets regulations, then it is up to the consumer to ensure their own safety.

What's next? A knife company gets sued because they didn't include a sheath in which to keep the knife? I sliced my finger last week cutting onions, maybe I should sue the knife company for not including a retractable safety guard, of the type used on table saws?

Such lawsuits are simply people abdicating personal responsibility for personal safety. If you buy a car on which the roof can collapse, then you've no right to complain that the roof collapses. Next someone will sue Harley Davidson because they didn't even include a roof on their bike!!!

A consumer can't be expected to know everything. A few years back, a tire company sold defective tires that caused tall vehicles to flip over at high speeds. It turned out the tires weren't made properly (I think the temperature was too low during a critical part of the maufacturing process, IIRC). Several people died as a result of the company's negligence.

A consumer could not possibly have known the tires on his car were defective.

I would disagree with this. Provided the corporation has not been deceitful about what safety features are on a vehicle/product, it is up to the consumer to make the choice. If a person knowingly buys a product lacking a particular safety feature, then receives an injury that could have been prevented by such a feature, it's their own darn fault.

Should vehicles have breathalyzers in them, and not start until after the driver blows? The technology is available. Maybe the vehicle should not be able to run unless everyone inside wears a seat belt? As long as the company hasn't lied about the features, and their product meets regulations, then it is up to the consumer to ensure their own safety.

What's next? A knife company gets sued because they didn't include a sheath in which to keep the knife? I sliced my finger last week cutting onions, maybe I should sue the knife company for not including a retractable safety guard, of the type used on table saws?

Such lawsuits are simply people abdicating personal responsibility for personal safety. If you buy a car on which the roof can collapse, then you've no right to complain that the roof collapses. Next someone will sue Harley Davidson because they didn't even include a roof on their bike!!!

You say you disagree with my statement but this is actually true. These are decisions that are made. In fact it influences a lot of the design work that I do to some extent.

Insurance companies in particular dictate a lot of safety requirements by adjusting rates or simply not insuring based on the inclusion or exclusion of features.